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Report No. 83

6.79. Rational.-

In fact, the rule rests on certain fundamental considerations based on the natural bond. In the Madras case already referred to,2 Holloway J., turning to Roman law, gave a quotation from Gaius (which we need not reproduce) and made the following observations:

"This great master (Gaius) considers, that, in not denying the natural guardianship between the erring mother and her sons and of the sons with one another, and admitting heritable tie between them, the praetor was moved by natural equity."

Paternity is a matter governed by Ills civile' and maternity by 'jus nature'. The creative forces of nature itself have bound the mother to her issue, whether born in lawful or unlawful wedlock, in a manner wholly or utterly different from the bond between the father and his sons. This natural relationship and these inescapable facts are reflected in ancient Hindu law governing succession to the Stridhana property of women, and in the rules recognised almost everywhere as to custody and guardianship of illegitimate children. Thus, the provision in section 19(b) is not in tune with the general law in regard to illegitimate children.

1. Mayana Bai v. Uttaram, (1864) 2 MHCR 196 (203).

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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